may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Benjamin (NMN) Braylock, petitioner,
State of Minnesota,
Filed September 9, 1997
Hennepin County District Court
File No. 90067622
Hubert H. Humphrey III, Attorney General, 102 State Capitol, St. Paul, MN 55155, Michael O. Freeman, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
Considered and decided by Huspeni, Presiding Judge, Kalitowski, Judge, and Amundson, Judge.
Appellant challenges the postconviction court's denial of his petition for postconviction relief based on ineffective assistance of counsel. We affirm.
Braylock appealed the court's denial of his motion for a continuance. In an unpublished opinion, this court remanded for a contested sentencing hearing. See State v. Braylock, No. C7-91-2386 (Minn. App. Oct. 13, 1992). At the second sentencing hearing, defense counsel again did not call Dr. Boerger or an independent expert to testify. Braylock was again sentenced to 268 months as a patterned sex offender.
Braylock appealed, arguing that the district court abused its discretion in sentencing by ignoring his age (56 years at the time of the offense) as a mitigating factor. This court rejected that argument, affirming the district court in an unpublished opinion. See State v. Braylock, No. C8-94-1181 (Minn. App. Aug. 23, 1994), review denied (Minn. Dec. 12, 1994). Braylock then filed a petition for postconviction relief alleging ineffective assistance of counsel at his second sentencing hearing. The postconviction court denied the petition. This appeal followed.
where direct appeal has once been taken, all matters raised therein, and all claims known but not raised, will not be considered upon a subsequent petition for postconviction relief.
State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976). However, the state fails to acknowledge later case law that clarifies Knaffla. The supreme court has held:
In limited situations, if fairness so requires and if the petitioner did not "deliberately and inexcusably" fail to raise the issue on direct appeal, we will allow substantive review of a claim contained in a petition for postconviction relief, either when the claim was known at the time of direct appeal or when its legal basis may have been reasonably available.
Roby v. State, 531 N.W.2d 482, 484 (Minn. 1995). Further, the supreme court has specifically held that a claim of ineffective assistance of counsel is more appropriately raised in postconviction proceedings than on direct appeal. See Scruggs at 25. We therefore conclude that Braylock's direct appeal does not bar his petition for postconviction relief based on ineffective assistance of counsel.
Braylock asserts that his counsel's representation fell below an objective standard of reasonableness when, at his sentencing, counsel failed to call the state's expert, Dr. Boerger, to testify in order to cross-examine him, and by failing to call an additional expert to testify. This is particularly startling given the fact that Braylock's first appeal revolved around counsel's lack of opportunity to do either of those things at the first sentencing hearing. See State v. Braylock, No. C7-91-2386 (Minn. App. Oct. 13, 1992). This court's analysis in remanding the sentencing hearing was that counsel was not afforded enough time to respond to the district court's proposed upward sentencing departure. See id. at 3. Braylock's counsel's failure to cross-examine Dr. Boerger or to present testimony of an independent psychologist, especially given the long period before the hearing in which to prepare, may raise concerns about counsel's representation. Braylock has failed, however, to prove the second prong of the test of ineffective assistance of counsel, namely, that the outcome of his sentencing hearing would have been different but for his counsel's presumed errors. We have no evidence before us that cross-examining Dr. Boerger would have reduced Braylock's sentence; there is also no evidence to indicate that an independent psychologist would have presented testimony different from Dr. Boerger, or that such testimony would have resulted in a lower sentence. Further, as the postconviction court wrote:
In the absence of evidence to the contrary, the court will presume that a decision by counsel not to call a particular witness is a tactical decision.
We agree. "Which witnesses to call and what evidence to present to the jury are matters of trial strategy, which are within the discretion of trial counsel." State v. Bliss, 457 N.W.2d 385, 392 (Minn. 1990). Braylock fails to demonstrate that the result of his sentencing would have been different but for his attorney's performance.
[ ]1 Braylock also raised a claim regarding the admission of Spreigl evidence. This court affirmed on that issue. See State v. Braylock, No. C7-91-2386 (Minn. App. Oct. 13, 1992).